“Extraordinary Circumstances” Called for Permission to File Late Notice of Tort Claim

O’Donnell v. New Jersey Turnpike Authority, 236 N.J. 335 (2019).  Under the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 et seq. (“TCA”), a person who wishes to file a tort lawsuit against a public entity must file a notice of claim within 90 days “after the accrual of the cause of action.”  The TCA creates an exception to that requirement, however, for “extraordinary circumstances.”  N.J.S.A. 59:9-9.  Today, in a 6-0 opinion written by Justice Solomon, the Supreme Court found that the exception applied to the facts of this matter.

This was a wrongful death case that arose out of a multi-vehicle accident on the New Jersey Turnpike.  Timothy O’Donnell and his five year old daughter died in the accident.  Timothy’s widow, Pamela O’Donnell (also the mother of the dead child) sued the New Jersey Turnpike Authority (“NJTA”) alleging that a lack of safety barriers caused the deaths of her family members.

Before filing suit, as Justice Solomon summarized in the first paragraph of his opinion, “[w]ithin ninety days of the accident, O’Donnell’s attorney served her notice of claim on the State, rather than the NJTA.  However, another driver involved in the accident properly served the NJTA within the ninety-day window.  This notice of claim served upon the NJTA cited the exact circumstances surrounding the collisions, named the involved parties, and alleged the same theory of liability against the NJTA.  After the ninety-day window had closed but within one year of the accident, O’Donnell sought leave to file an amended notice of claim with the NJTA, arguing that she should be permitted to file her notice of claim late pursuant to N.J.S.A. 59:8-9 because extraordinary circumstances existed.”

In the Law Division, the NJTA moved to dismiss because no notice of tort claim was timely served upon it.  Plaintiff cross-moved for leave to file a late notice of tort claim, citing N.J.S.A. 59:8-9, which permits such an application.  The Law Division denied dismissal and granted the cross-motion. “The judge found it extraordinary that the State, having received a notice of claim involving a double-fatality car crash, failed to forward the notice of claim to the NJTA or otherwise notify O’Donnell that the notice had been served on the wrong public entity.  The judge also determined that, given the surrounding circumstances, it would be inappropriate to penalize O’Donnell for her attorney’s negligence.”

The NJTA appealed, and the Appellate Division reversed, finding that the Law Division’s ruling was an abuse of discretion.  The Supreme Court granted plaintiff’s petition for certification and, applying the abuse of discretion standard, reversed the Appellate Division.

After discussing the structure and goals of the TCA, the notice of claim requirement, the exception for “extraordinary circumstances,” and prior caselaw on the subject, Justice Solomon noted that there was no evidence that the NJTA impeded timely service of the notice of claim, and that the State had no duty under the TCA to forward the notice of tort claim to the NJTA or advise plaintiff of her counsel’s error.  But the Court still found “extraordinary circumstances,” a term not defined in the TCA, based on the facts set forth in the first paragraph of Justice Solomon’s opinion.

The fundamental goal of the notice of claim requirement is to put a public agency on notice and allow it to investigate a potential claim.  Based on the other driver’s notice of tort claim (which was not in the record before the Appellate Division but as to which the Supreme Court granted supplementation), “the NJTA could investigate potential claims arising from the accident, prepare a defense, and formulate a plan to remedy promptly any Turnpike defect.  Therefore, when O’Donnell finally served her amended notice of claim on the NJTA, it was already aware of its potential liability arising from the accident and was not prejudiced by the untimely filing.”

Moreover, plaintiff herself had not been dilatory.  Her attorney served a notice of tort claim timely, but on the wrong entity.  On all the facts, therefore, the Court reversed the Appellate Division and allowed plaintiff to file a late notice of tort claim.  The case was remanded for further proceedings.